JANUARY 11, 2016

No. WC15-5819

PRACTICE & PROCEDURE - ADEQUACY OF FINDINGS; MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS.  Where the compensation judge’s finding that the treatment at issue was reasonable and necessary does not address a relevant treatment parameter discussed by the parties at the hearing, a remand is required for consideration of whether a treatment parameter defense was in fact properly raised, and if so, whether the treatment at issue is consistent with the specified treatment parameter rules, that is, whether the treatment and care at issue was reasonable and necessary under those rules, and, if not, whether a departure is warranted.

TEMPORARY PARTIAL DISABILTY - EARNING CAPACITY; TEMPORARY PARTIAL DISABILITY - WORK RESTRICTIONS.  Substantial evidence, including testimony by the employee which was accepted by the compensation judge, supports the determination that the employee was restricted by pain and had sustained a loss in earning capacity as the result of his work injury.

Determined by:
            Deborah K. Sundquist, Judge
            Patricia J. Milun, Chief Judge
            David A. Stofferahn, Judge

Compensation Judge:  Rolf G. Hagen

Attorneys:  Michael S. Krug, St. Paul, Minnesota, for the Respondent.  Richard W. Schmidt and Elizabeth R. Cox, Cousineau McGuire Chartered, Minneapolis, Minnesota, for the Appellant.

Affirmed, in part, and vacated and remanded, in part.



The self-insured employer appeals the compensation judge’s findings that certain medications and the care and treatment provided to the employee by the United Pain Center were reasonable or necessary to cure or relieve from the effects of the employee’s personal injury.  Because the compensation did not address the treatment parameters which appeared to be raised at the hearing, we vacate and remand.  The self-insured employer also appeals from the judge’s determination that the employee was entitled to temporary partial disability compensation for certain periods.  We affirm the compensation judge’s findings that the employee is entitled to temporary partial disability as claimed.


As an architectural drafting technician in the bridge unit for the Minnesota Department of Transportation, the employee’s job was sedentary, allowing him to sit most of the day.  On August 19, 2009, while standing during a break, the employee was kneed by a co-employee as a joke.  The employee fell twisting his left knee.  As a result of the injury, he underwent two surgeries, including a total knee arthroplasty (total knee replacement) performed by Dr. H. William Park of Summit Orthopedics on August 2, 2010.  The self-insured employer admitted liability and paid for medical expenses and wage loss benefits.

The employee complained of significant pain after the total knee replacement surgery.  He was started on narcotic medications two months after the injury and continued to take them for almost 4½ years.[1]  The employee sought treatment from two orthopedics specialists, Dr. Park, who performed the surgery, and Dr. Joseph Flake of Twin Cities Orthopedics, whose care he sought post-surgery.  Both doctors recommended that he wean off narcotic medications, but he continued using them for pain relief.

Dr. Flake released the employee to work with permanent restrictions on October 26, 2011.  The restrictions were fairly minimal in that the employee was simply told to stretch his knee for five minutes each hour.  There were no restrictions on lifting or movement, nor on the number of hours that he could work.  The employee complained of ongoing pain with some cramping in the leg.  He asked about a note to be off work due to the cramping.  Dr. Flake gave him a note, but told him that “basically in the future, I think he will have to go into work and with this, there is just not much more we can do medically. . .”[2]  No additional restrictions were given to the employee due to his complaints of pain and cramping.

On May 16, 2012, Dr. Flake again reported that there was nothing more he could do for the employee.  “[The employee] went through a full battery of tests and really didn’t come up with any specific finding.”  Dr. Flake referred the employee to a pain clinic for his pain.

The employee saw Dr. Angelito Sajor at United Pain Center on September 7, 2012.  At the time, the employee was using Tramadol.[3]  There was no evidence that the employee was taking any other narcotic medication or muscle relaxers in September 2012.  Initially, Dr. Sager prescribed a non-narcotic medication, gabapentin (Neurontin).  He then referred the employee for a psychological profile with Dr. Robert Tolles.  Dr. Tolles reported no chemical or alcohol abuse history[4] and diagnosed the employee with a “pain disorder.”  The employee signed an opioid contract with United Pain Clinic.  Following the psychological screening and contract, Dr. Sager prescribed Neurontin and the narcotic oxycodone on October 8, 2012.  Over the course of eight months, United Pain Clinic prescribed a number of medications and injections.  Nothing worked.[5]

At the job, an issue arose concerning the employee taking pain medication which caused him to be lethargic.  Dr. Sager wrote a letter to the self-insured employer stating that the employee could take pain medication at work.  On June 5, 2013, Dr. Sager reported that the employee had a meeting with his work supervisor because there was an incident that he was drowsy because of medication.  He was told not to take his pain medication when he is at work.  Dr. Sager noted, “This is the reason why he wanted to apply for disability.”  The employee stated that he was unable to work due to pain.  At the same time, the employer did not want him to be on pain medication.  Dr. Sager prescribed nortriptyline[6] and referred him to a neurologist.

The employee returned to see Dr. Flake on July 15, 2013.  Dr. Flake noted that the employee continued to have pain and that the neurologist had nothing to offer for additional treatment.  The employee asked about going “on disability.”  Dr. Flake told him that he saw no objective reason to increase his restrictions or place him on disability.  He confirmed that the current permanent work restrictions of stretching every hour for five minutes were reasonable and appropriate.

At some point in the summer of 2013, the self-insured employer discontinued payment of medical expenses, including the expenses of treatment at the United Pain Clinic and for ongoing prescription medication.  The employee filed a claim petition in November 2013.  Dr. Brian Konowalchuk examined the employee as part of an independent medical examination (IME) for the self-insured employer on March 29, 2014.  At the time of the examination, the employee told Dr. Konowalchuk that he currently took oxycodone three times per day, and baclofen less than 2 times every week.  Dr. Konowalchuk noted the employee’s long extensive history of substance abuse, and that the current use of pain medication was not objectively validated by physical examination findings, imaging studies, or any of the multiple tests that had been performed to identify a specific knee abnormality.  He opined that the employee’s medical regimen was not reasonably necessary to cure or relieve from the effects of the August 19, 2009, personal injury, and that the use of opioid medications was not in accordance with Minn. R. 5221.6105.  Dr. Konowalchuk added that the employee was able to work in a light duty capacity with unrestricted and unlimited hours.  He recommended as an additional restriction that the employee not use any narcotic or muscle relaxer medications prior to or while in the work place.  He also opined that the employee should be discontinued from all narcotic and muscle relaxer medications.  Last, he concluded that the employee had reached maximum medical improvement (MMI) within one year of surgery, consistent with Dr. Flake’s October 25 2011, note.

Between the employee’s release to return to work in October 2011 and the hearing, no doctor had taken the employee off work or restricted the employee’s job duties due to his pain disorder.  To manage his condition, the employee used his sick leave and vacation leave to take himself off work when he felt he was unable to compensate for his pain complaints.  An exhibit was provided at the hearing listing the employee’s sick leave and vacation leave usage.  The employee did not specifically testify that all the vacation or sick time listed had been taken for his pain, and not for some other non-injury-related reasons.  However, the employee testified that when he was absent from work, he called his supervisor and let him know the reason he was not coming to work.  The self-insured employer presented no evidence to contradict the employee’s testimony.  In April 2014, the employee began using FMLA time as well as taking vacation and sick time.  His gross wages were significantly lower in 2014.

At the hearing, the employee claimed temporary partial benefits based on an imputed reduced wage calculated by subtracting the sick leave and vacation leave he used from his gross pay.  The self-insured employer argued that the employee had a pre-existing history of problems with concentrating and focusing in the work place since 2008.  It argued that there was a lack of documentation to substantiate the various dates of claimed temporary partial disability. It further argued that the employee was able to work full time according to the undisputed restrictions, so that any reduction in earnings was not causally related to the work injury.

The employee also claimed that he was entitled to ongoing medication, including narcotic/opioid medication, as well as continued care and treatment through United Pain Clinic.  The self-insured employer pointed out that the employee’s treating doctor, Dr. Flake, had said early on that the employee should be weaned off narcotic pain medication.  Similarly, Dr. Konowalchuk had opined that the ongoing medication was not reasonable and necessary, or in accord with the treatment parameters for opioid medicine set forth in Minn. R. 5221.6105.

The compensation judge awarded temporary partial and medical benefits.  He further ordered that the self-insured employer reimburse the interveners. The self-insured employer appeals.


Reasonableness and Necessity of Medical Treatment and Medications

The question of reasonableness of medical treatment is one of fact for the compensation judge.  See Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993).  The issue for this court is whether substantial evidence supports the compensation judge’s determination.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).

The compensation judge found that treatment provided to the employee by United Pain Center was reasonable, necessary, and causally related to the employee’s injury.  He also found that if, upon resumption of treatment with United Pain Center, the employee’s physicians there determine that Oxycodone, Baclofen, and Lidocaine patches are appropriate, the employee would be entitled to refills of these medications under the direction of United Pain Center.

On appeal, the self-insured employer argues that substantial evidence was not present to support the finding that the United Pain Center was reasonable and necessary, and that the compensation judge further erred by not applying the factors delineated by this court in Field‑Siefert v. Goodhue County, slip. op. (W.C.C.A. March 5, 1990), regarding reasonable and necessary medication treatment.  It further argues that the employee’s use of narcotic medications was not indicated under the treatment parameters, specifically Minn. R. 5221.6105, and is therefore not reasonable or necessary.

In response, the employee argues that the issue of the reasonableness and necessity of medical treatment is a fact question for the judge, and that the judge’s findings are here supported by substantial evidence.  He points out that United Pain Clinic had made a pain management plan, and that Dr. Sajor at that clinic had prescribed Baclafan, oxycodone, and Lidocaine because of the effectiveness of these medications in alleviating his pain.

From October 2009 through March 2014, the medical records document that the employee used narcotic medications.  Narcotic medication use is limited by the treatment parameters under Minn. R. 5221.6105 and 5221.6110.  The parties initially stipulated that the self-insured employer was not raising a defense based on the treatment parameters.  However, at the hearing, after a lengthy discussion between counsel and the compensation judge, the stipulation waiving a treatment parameter defense was withdrawn.  Counsel for the self-insured employer maintained that the treatment parameters remained at issue to the extent that they were discussed by the employer’s medical expert as part of the basis for his opinion denying the reasonableness and necessity of narcotic pain medications.  The compensation judge attempted to clarify, noting that if causation for the treatment were in dispute, the treatment parameters would not apply.  The employer’s counsel replied that causation for the injury was not disputed as the injury was admitted.  Causation for the treatment was alleged to be disputed, but the discussion is unclear and it appears that this defense may have been withdrawn.  (See Tr. at 11-15.)   The exchange created confusion as to what the self-insured employer was actually claiming.  At the oral argument before this court, the self-insured employer reiterated that its treatment parameter defense was not withdrawn at the hearing.

What is clear is that the treatment parameter defense was raised at the hearing based specifically on Minn. R. 5221.6105, which addresses the use of nonsteroidal anti-inflammatory drugs (NSAIDs), muscle relaxants and opioids.  What is not clear is whether the self-insured employer continued to maintain that the treatment was not due to the injury thereby relinquishing the ability to raise the treatment parameters as a defense.  The treatment parameters do not apply to treatment of an injury after an insurer has denied liability for the injury.  Minn. R. 5221.6020, subp. 2.

In determining the compensability of medical treatment when specific treatment parameters are raised by the parties, a compensation judge must consider whether the treatment parameters apply.  If so, the judge must determine whether the treatment is consistent with the treatment parameter(s) and whether the treatment was medically necessary as defined…Finally, the judge must consider whether a departure from the applicable parameter is or was necessary.”  Bennetts v. United Hosp., slip op. (W.C.C.A. Feb. 18, 2014).

Because the medications prescribed for the employee are subject to a treatment parameter arguably raised by the self-insured employer[7] and cited by its medical expert, we conclude that the compensation judge must address whether a treatment parameter defense was properly raised, and if so, whether the treatment parameters apply in this case or whether a rare case exception exists to allow a departure from the parameters pursuant to Minn. R. 5221.6105.  We therefore vacate Finding 10 and Orders 1, 2, and 3, and remand for further findings in accordance with this opinion.

Intervention Claims

The compensation judge ordered the self-insured employer to reimburse the intervenors for medical expenses rendered.  The self-insured employer argues that because the treatment was not reasonable and necessary, the intervenors do not have an interest in the matter.  The employee argues that substantial evidence supports reimbursement to the intervenors.

Because the issue of medical treatment is vacated and remanded for further findings pursuant to the application of the treatment parameters, we also vacate and remand the compensation judge’s findings on the intervenors’ claims.  On remand, the compensation judge shall consider whether the treatment parameters defense was properly raised by the self-insured employer, whether the treatment parameters apply in this case, whether the treatment parameters bar the intervenors’ recovery, and whether a rare case exception exists for a departure from the treatment parameters.

Temporary Partial Disability

The compensation judge held that the employee was entitled to temporary partial benefits.  The judge found that the employee’s work-related knee injury resulted in the development of chronic pain.  While the employee had no formal restrictions relating to the chronic pain, the left knee pain resulted in the employee’s periodic inability to work a full eight hour day.  The compensation judge awarded temporary partial disability benefits from January 3, 2012, through March 5, 2015, the date of hearing.

To demonstrate entitlement to temporary partial disability benefits, an employee must show a work-related physical disability, an ability to work subject to the disability, and an actual loss of earning capacity that is causally related to the disability.  See Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 47, 245 N.W.2d 451, 454, 29 W.C.D. 86, 91 (1976).  The employee argues that all four elements are present here.  He suffered an admitted work related injury resulting in disability.  He has permanent restrictions of five minutes of stretching each hour.  He contends that he also requires pain medication to control his pain so he can work.  The employee argues that he also suffered an actual wage loss measured by a comparison of the 2009 average weekly wage to his reduced hours while he used sick and vacation time to compensate for lost time due to pain.  The compensation judge accepted the employee’s testimony that he missed time from his post injury job from time to time as a result of pain, using sick leave and vacation leave.  The judge awarded temporary partial disability benefits based on reduced weekly wages derived by subtracting the employee’s sick leave and vacation leave pay from his weekly compensation.

On appeal, the self-insured employer argues that a restriction requiring stretching for five minutes per hour is a negligible restriction which does not affect the employee’s earning capacity, particularly since the employee has had no difficulty observing this restriction after returning to his pre-injury job.  The employer argues that the absence of any significant formal medical restrictions demonstrates that the employee has no residual disability.  Furthermore, the employer argues that the employee did not provide any evidence to prove that each of the specific hours and days missed since January 2012 was causally related to the work injury, a point on which the employee had the burden of proof.  The employer points out that the employee actually missed more time before his medication was cut off than he did afterwards.  It further points out that the employee had significant work attendance issues which predate the work injury.

Formal written restrictions are not absolutely necessary to show that the employee has a disability.  See, e.g., Pierce v. Minn. Mining and Mfg., slip op. (W.C.C.A. July 18, 2001.  Similarly, in Carlson v. Northland Paper Supply, slip op. (W.C.C.A. Jan. 8, 1999), this court concluded that an employee’s testimony alone may serve as a sufficient basis for determination of the physical demands of a job and their relationship to specific symptoms.  Thus, we are not persuaded by the argument that the compensation judge erred as a matter of law in finding that the employee was restricted by his pain despite an absence of formal pain restrictions.

Based on the record as a whole, we conclude that substantial evidence supports the award of temporary partial benefits.  The employee testified that at times he could not work due to pain, using his sick leave and vacation leave at those times, and the compensation judge accepted that testimony.[8]  The employee introduced an exhibit specifying the dates and amounts of leave used.  The employee also testified that he called his supervisor each time he missed work and told him why he would not be in that day.  The time shown on the exhibit is consistent with the employee’s testimony.  The self-insured employer did not offer any evidence suggesting that any of the leave used was taken for some other reason.  In light of the judge’s acceptance of the employee’s testimony, and in light of the absence of evidence refuting any part of that testimony, we find no basis to reverse the compensation judge’s findings and order.  We conclude that the compensation judge’s decision to award temporary partial disability based on the employee’s actual earnings, as reduced by pay he received for the sick and vacation time, is supported by substantial evidence in the record.  We therefore affirm.

[1] The record shows that the employee began taking narcotic medications for the first time on November 2, 2009, when prescribed by Dr. Terry Domino.  At the time of the independent medical examination with Dr. Konowalchuk in March 2014, it was documented that the employee continued to use a narcotic medication.

[2] Exhibit 3, chart note of October 25, 2011.

[3] Tramadol is an opioid pain medication.  Dorland's Illustrated Medical Dictionary, 1862 (29th ed. 2000).

[4] This is contrary to the employee’s medical history documenting treatment for depression, anxiety, panic disorder and alcohol abuse going back to 2006, and indicating that the employee’s primary treating family physician, Dr. John P. Hamerly, recommended on multiple occasions during the period from 2006 through 2009 that the employee stop drinking alcohol and seek treatment for the same, as the employee was experiencing problems with concentration and focus, especially in the work place, which was resulting in absenteeism.  This recommendation for alcoholic treatment was repeatedly declined.  Finding 4a.

[5] The employee did not tolerate oxycodone or Neurontin.   Dr. Sager then prescribed Butran patches, but the employee had bad dreams from it.  Dr. Sager then prescribed hydromorphone (Dilaudid) and a Lidoderm patch, but the employee continued to experience pain.  Dr. Sager added Lyrica to the mix, but there was still pain.  A peroneal nerve block was tried, but didn’t work either.  The employee said that he could not tolerate Lyrica, MS Contin and hydromorphone.  Dr. Sager prescribed Opana on April 4, 2013.  The employee did not tolerate that either, as it caused itching.

[6] Nortriptyline is a tricyclic antidepressant. Dorland's Illustrated Medical Dictionary, 1234 (29th ed. 2000).

[7] Minn. R. 5221.6105.

[8] We infer from the findings that the judge found the employee credible.  While an explicit finding regarding credibility is not required under the facts of this case, such a finding would have assisted this court in its review.